What was Tenancy Tribunal case 4847001 about?

The tribunal order states: Harvestland Company Limited must pay [The tenant/s] $12,134.04 immediately,

How much money was awarded in case 4847001?

Property Damage: $885.03 awarded to tenant; Property Damage: $3,400.00 awarded to tenant; Property Damage: $7,200.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $121.43 awarded to landlord

What type of tenancy dispute was case 4847001?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4847001?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10538330-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4847001 about?

The tribunal order states: Harvestland Company Limited must pay [The tenant/s] $12,134.04 immediately,

How much money was awarded in case 4847001?

Property Damage: $885.03 awarded to tenant; Property Damage: $3,400.00 awarded to tenant; Property Damage: $7,200.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $121.43 awarded to landlord

What type of tenancy dispute was case 4847001?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4847001?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10538330-Tribunal_Order_Redacted.pdf.

228 Forrest Hill Road, Forrest Hill, Auckland 0620 Tenancy Tribunal Case 4847001 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4847001 — net $12,134.04 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$121.43		Rent arrears
Compensation: flood damage rent abatement		$3,400.00	flood damage rent abatement
Compensation: flood damage dehumidifier hire		$885.03	flood damage dehumidifier hire
Exemplary damages: Misleading HH statement		$750.00	Misleading HH statement
Exemplary damages: Fail to meet HH standards		$7,200.00	Fail to meet HH standards
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$121.43	$12,255.47
Net award		$12,134.04
Total payable by Landlord to Tenant		$12,134.04

Claims and awards in Tenancy Tribunal application 4847001 — net $12,134.04 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$121.43		Rent arrears
Compensation: flood damage rent abatement		$3,400.00	flood damage rent abatement
Compensation: flood damage dehumidifier hire		$885.03	flood damage dehumidifier hire
Exemplary damages: Misleading HH statement		$750.00	Misleading HH statement
Exemplary damages: Fail to meet HH standards		$7,200.00	Fail to meet HH standards
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$121.43	$12,255.47
Net award		$12,134.04
Total payable by Landlord to Tenant		$12,134.04

Order

Harvestland Company Limited must pay [The tenant/s] $12,134.04 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $3,400.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.
The landlord was represented by one of its directors Andy Kim. Rent Arrears
The landlord claims that rent arears are owed. It has not filed an application seeking payment of arrears however the tenants agree that I should determine that claim.
Having reviewed the evidence, I find it proved that the final payment of a part week’s rent made by the tenants was for five days’ rent rather than six days’ rent as it should have been. A further days’ rent is owed. Healthy Homes compliance and statements
Under section 13A(1CA), a landlord must include in the agreement a signed statement addressing the premises’ healthy homes compliance.
Section 13A(1F) makes it an unlawful act to knowingly provide in that statement anything the landlord knows to be false or misleading. Exemplary damages of up to $900.00 may be awarded for breach of that provision.
The landlord must then ensure that the premises comply with the Healthy Homes standards prescribed in the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“HH Regulations”).
This tenancy commenced on 15 December 2022. The date by which the premises were required to comply was 120 days after that commencement date ie. 14 April 2024 (see. HH Regulations Schedule 1).
Breach of the obligation to ensure that the premises meet the standards prescribed in the HH regulations is, in each case, an unlawful act attracting a maximum award of exemplary damages of $7200.00.
The agreement between the parties included a Healthy Homes compliance statement signed by Mr. Kim, representing that the premises, at that point, complied with all Healthy Homes standards.
After occupying the property for some time the tenants had questions about whether the premises are were compliant. They arranged for a healthy homes assessment to be undertaken. That assessment was undertaken by Oncore on 14 March 2024.
The Oncore assessment reports that the premises were non compliant with the moisture and ingress standard, non compliant with smoke alarm requirements, non compliant with the draught stopping standard and non compliant with the heating standard. No required ground moisture barrier was found. The premises were assessed as meeting the ventilation and insulation standards.
The tenants provided a copy of that report to the landlord along with a 14 day notice to remedy, issued on 21 March 2024. The landlord then arranged for remediation work to be undertaken. The landlord arranged for the same assessor, Oncore, to re inspect the premises and Certificate of Compliance with Healthy Homes standards was issued on 10 April 2024 Findings
The evidence satisfies me that at the point the landlord provided the tenants with a signed statement certifying that the premises complied with Healthy Home standards, that statement was incorrect. The extent of the non compliance showed in the Oncore report is such that the premises could not have been compliant at the time the statement was made.
Mr Kim was unable to provide evidence of any substantive checks undertaken to assess the premises’ compliance before the statement was signed and provided to the tenants.
The landlord, having no basis for knowing whether it was true or not, must have been aware that the compliance statement was misleading, even if not aware of the details and extent to which the premises were not HH compliant.
I therefore find that the landlord committed an unlawful act by providing a misleading Healthy Homes compliance statement.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The evidence provides few mitigating circumstances. The landlord must have known that the purpose of requiring landlords to provide Healthy Homes compliance statements, is so prospective tenants have fundamental information about the health and comfort of a property they are considering renting, before they enter into a tenancy agreement. Making those compliance representations, unsupported by any real inquiry and which were shown to be incorrect in many respects, is a fundamental breach of the landlord’s obligation.
The effect was that the tenants entered into a residential tenancy agreement for premises that were less healthy and comfortable then the landlord’s statement represented them to be. At least partly as a consequence, the tenant’s chose to end the tenancy with the resulting dislocation, disruption and cost.
There is an obvious public interest in landlords being encouraged to take that statutory obligation seriously.
I therefore consider it just to make an award of exemplary damages toward the high end of the available range.
The evidence satisfies me that the premises are were not compliant with the Healthy Homes standards until the remediation work was undertaken by the landlord in late March to early April 2024 and the Certificate of Compliance was issued. The landlord committed an unlawful act by failing to ensure compliance when required.
As noted, the premises failed to meet several of the fundamental Healthy Homes standards. Fourteen, “action points” to address non compliance, were noted in the Oncore report.
Those failures by the landlord meant that the tenants were living in premises that were more likely than not to have been colder, more draughty and damper than they were entitled to expect.
In considering the section 109(3) a criteria referred to above, as well as the fundamental nature of the breaches, the effect on the tenants and the public interest in ensuring that at landlords ensure that the homes they rent out are Healthy Homes compliant, I do take into account that as soon as the landlord was made aware of the Oncore report it undertook the necessary remediation work and had the remediation worked checked for compliance by Oncore, to ensure there was no doubt about whether compliance had been achieved.
Weighing those considerations, my view is that it would be just to make an award of exemplary damages equal to the maximum amount that could be awarded for one breach, to reflect that to some extent the breaches resulted from one fundamental failure by the landlord to provide compliant premises but that a breach was committed for each failure to meet a Healthy Homes compliance standard. Fire alarms
The tenants note the finding in the Encore assessment that, “The smoke alarms are aged and require replacement.”
Mr Kim’s evidence is that one of the 3 smoke alarms installed in the premises was of and older and no longer used type which required battery replacement. His evidence is that on each property inspection he tested all the alarms to ensure they were working, which they all were. As soon as he received the Oncore report that he arranged for another, new, smoke alarm to be installed.
In those circumstances I do not consider that it would be just to penalise the landlord further. Electrical system
Another issue noted in the Oncore report, though not directly related to Healthy Homes standards compliance, concerns the electrical reticulation and mains board. The Oncore report notes that, “The meter box and switchboard is very old, with ceramic fuses.” Because the tenants were concerned about the safety implications, they then arranged for an electrical inspection.
At a report from that inspector dated 7 March 2024 notes, “Inspection of electrical wiring and switchboard and insulation is showing signs of being brittle, if the wiring is disturbed there would be a high risk of damage or fire. Recommend replacing the old wiring for new and upgrading of the switchboard with RCD protection, It is not 100% sure if insurance covers old poor wiring, landlord would need to check his insurance. Rewire may be difficult being a multi level house.”
The tenants provided a copy of that report to the landlord. They say that subsequently, when a new heat pump was installed, the wiring through to the mains board was interfered with, which they say, based on that electrical report, created a significant fire risk. The tenants have provided photographs showing a work being done impacting on the mains board.
Mr Kim says that when the heat pump was being installed, he showed the electrician doing the installation, the electrical inspection report obtained by the tenants. He says that the electrician (a registered tradesman) was then able to ensure that installation of the wiring required for the new heat pump was done in a safe manner.
The landlord says that his insurers confirm that the insurance is not at risk due to the old wiring in the house, replacement of the entire wiring is not currently feasible for it, so to mitigate any risk he has had the ceramic fuses replaced with RCD type circuit breakers.
While the evidence clearly shows that the electrical circuitry in the premises is old and that replacement is recommended, it does not prove that the landlord has breached an obligation in terms of compliance with Healthy Homes standards or in ensuring that premises are kept in a reasonable state of repair. Neither the Oncore report nor the electrical inspection report indicate that the current wiring is unlawful. Flooding
During the Cyclone Gabrielle, water entered the downstairs of the premises.
The tenants say that the flooding was significant, they needed to mop up the water and try and channel it out of the house. They say that the lower part of the walls in the downstairs of the property were damp. They say that they were told by the assessor, sent in by the landlord’s insurer, that there would be a need to remove flooring and the lower portion of the wall linings, to dry them out and ensure no ongoing moisture or contamination from black water.
Their evidence is that they were effectively unable to use the downstairs of the have premises for eight weeks while it dried sufficiently for safe use and the smell became bearable.
The landlord’s position is that the tenants are exaggerating both the extent and effect of the flooding and its effect on the tenants’ use of the premises. Mr Kim says having visited the premises regularly during that time there was really no significant impact downstairs except in the laundry and that it seemed to him that the tenants were continuing to use the premises the downstairs of the premises throughout.
Mr Kim also says that the floodwater looked clear and not contaminated and he checked the walls for dampness which he did not find. He acknowledges that he is not a tradesperson and did not use any invasive moisture testing to check beneath the wall surfaces.
The tenant’s evidence is corroborated by the position taken by the landlord’s insurer. The insurer assessed the flood damage as requiring the floors to be lifted and the lower part of the wall linings to be replaced.
Following that assessment, quotes for the work were obtained, the claim was approved and a cash settlement was negotiated and paid to the landlord.
The landlord banked the settlement payment and did not do any of the remediation work on which the claim was based. Findings
Section 59(4) provides that, “Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable,—(a) the rent shall abate accordingly...”
I find it proved on balance that there was damage to the floors and walls in the downstairs part of the premises that required remediation. What the tenants say about the uninhabitability of the downstairs area is corroborated by the insurer’s findings about the remediation work required and its having paid out on the landlord’s claim for the costs of doing that work.
In my view it would be unconscionable for the landlord to require the tenants to remain living in damaged premises, with the associated potential health risks, with no compensation, while banking the money claimed from its insurer to complete the remediation work.
The tenants claim a rent abatement of 50% of the rent for eight weeks.
They say that the downstairs of the property contained the laundry, a spare room used by them for their office from which most of their business was conducted and their son’s bedroom.
The tenants gave evidence about the impact of the flooding, the need for constant use of dehumidifiers while it dried and the continuing and noxious smell in the downstairs area.
The tenants understood from the assessor, that potential contamination to the wall cavities and underfloor by black water gave potential health concerns extending beyond the eight weeks they say they did not use the downstairs area.
I find that their decision not to use that part of the premises for that period was justified. The rent abatement should take account not only of the lack of use of that space but the many other inconveniences that they put up with from the effects of the flooding.
Mr Kim has a different view but with respect, his judgement that the floodwater looked clear and not contaminated and that after a while the wall surfaces seemed dry, does not excuse the landlord’s decision that it did not need to do any remediation work, despite having been paid to do so by its insurer, after a professional assessment of the damage.
Assessing the evidence overall, I find that the tenants’ claim for abatement of 50% of the rent for 8 weeks is proven and reasonable. Dehumidifier hire
The tenants claim additional compensation for the cost of one week’s dehumidifier hire. An additional two week’s hire costs were incurred, before they bought their own, but that is not claimed for.
My assessment is that the dehumidifier hire cost was to the benefit of the landlord, as it was for the purpose of drying out the landlord’s premises. Again, in my view it would be unjust to deny compensation for that cost, incurred by the tenants, for the landlord’s benefit. 56.
Because [The tenant/s] have largely succeeded with their claims I must reimburse the filing fee.

Tenancy Tribunal case 4847001 — Exemplary damages at 228 Forrest Hill Road, Forrest Hill, Auckland 0620

At a glance

Tenancy Tribunal case 4847001 — Exemplary damages at 228 Forrest Hill Road, Forrest Hill, Auckland 0620

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions